FILED

United States Court of Appeals

Tenth Circuit

December 18, 2012

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

DERRICK ANDRE MYERS,

Plaintiff - Appellant,
No. 12-3225
(D.C. No. 5:11-CV-03168-SAC)
(D. Kan.)

v.
AMY JACKSON, CCS Nurse, El
Dorado Correctional Facility,
Defendant - Appellee.

ORDER AND JUDGMENT *

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **

Plaintiff-Appellant Derrick Andre Myers, a state prisoner appearing pro se,

seeks to appeal from a district court order dismissing his civil rights complaint
pursuant to 42 U.S.C. 1983 for failure to exhaust, for failure to state a federal
constitutional claim, and as frivolous. We deny his motion to proceed in forma
pauperis (IFP) and dismiss the appeal as frivolous.
*

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

Mr. Myers filed this action alleging that Defendant-Appellee nurse Amy
Jackson denied him his right to refuse medical treatment and subjected him to
excessive force. 1 R. 415. The district court ordered Mr. Myers to show cause
why the action should not be dismissed for failure to fully exhaust the available
administrative remedies and for failure to state a claim. Myers v. Jackson, No.
11-3168-SAC, 2012 WL 137935 (D. Kan. Jan. 18, 2012). Mr. Myers appealed,
and on March 21, 2012, this court dismissed the appeal for lack of prosecution. 1
R. 9699. Next, after considering Mr. Myers motion for reconsideration and
motion to file memorandumconstrued as responses to the January 18 show
cause orderthe district court dismissed the action and entered judgment against
Mr. Myers. Myers v. Jackson, No. 11-3168-SAC, 2012 WL 3637742 (D. Kan.
Aug. 23, 2012).
A court has the authority to dismiss a case brought by a plaintiff proceeding
or attempting to proceed IFP at any time if the court determines that the action
or appeal is frivolous or malicious. 28 U.S.C. 1915(e)(2)(B)(I). We generally
review a dismissal for frivolousness under an abuse of discretion standard. Fogle
v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).
The district court first determined that Mr. Myers did not properly exhaust
his administrative remedies in violation of 42 U.S.C. 1997e(a). Myers, 2012
WL 137935, at *23. The Kansas Department of Corrections has a four-step
grievance procedure for inmates. Id. at *3 (citing Kan. Admin. Regs. 44-15-2-

101 through 102). It plainly appears from the materials filed that, at best, Mr.
Myers completed only two of these steps and therefore failed to properly exhaust
his administrative remedies. Id. In response to the courts order to show cause
why the action should not be dismissed, Mr. Myers argued that he attempted,
several times, to exhaust but his grievances were ignored. 1 R. 58. None of the
seven forms and grievances Mr. Myers attached to his motion to reconsider nor
any allegation in his present appeal, however, shows that he fully exhausted the
claims in his complaint. See Myers, 2012 WL 3637742, at *13; Aplt. Br. 17.
Second, the district court determined that Mr. Myerss complaint does not
state a federal constitutional claim. Myers, 2012 WL 137935, at *36. To avoid
dismissal, [f]actual allegations must be enough to raise a right to relief above the
speculative level, and must contain enough facts to state a claim to relief that is
plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). The district court found that neither the claim of denial of right to refuse
treatment nor the claim of cruel and unusual punishment or excessive force
suggested a violation of any established federal constitutional right. For example,
to establish a claim of excessive force, Mr. Myers must show (1) that the alleged
wrongdoing was objectively harmful enough to establish a constitutional
violation and (2) that the defendant official acted with a sufficiently culpable
state of mind. Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003)
(quotation omitted). The district court found that Mr. Myerss complaint was
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insufficient to allege either. Myers, 2012 WL 137935, at *5. When Mr. Myers
was again given time to show cause why his claims should not be dismissed, he
alleged no persuasive additional facts or legal arguments to support his claims.
Myers, 2012 WL 3637742, at *34. The district court therefore concluded that
the action was frivolous and malicious. Id. at *4.
We agree. Applying the standards of 28 U.S.C. 1915(e)(2)(B)(i), we
conclude that Mr. Myers presents no reasoned, non-frivolous argument for our
consideration.
Accordingly, we DISMISS the appeal as frivolous. We DENY all of Mr.
Myers pending motions, including his request to reconsider imposing the
appellate filing fee, and order immediate payment of the full filing fee.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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